Citation Nr: 1120413
Decision Date: 05/25/11 Archive Date: 06/06/11
DOCKET NO. 08-17 751 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUE
Entitlement to service connection for residuals of a spinal injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. Diliberto, Associate Counsel
INTRODUCTION
The Veteran had active service from July 1955 to October 1958.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
In November 2010 the Board remanded the Veteran's claim for further development. Unfortunately, the claims file reflects that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran has claimed entitlement to service connection for residuals of a spinal injury that he contends occurred in service. In November 2010 the Board remanded this claim for further development. In that remand the Board instructed the RO/AMC to attempt to obtain updated treatment records and to schedule the Veteran for an appropriate VA examination in support of his claim.
The record reflects that the RO/AMC attempted to schedule the Veteran for a VA examination in December 2010, but that the Veteran did not report. The Board received an April 2011 statement from the Veteran's representative indicating that the Veteran was unable to report for that examination because he had been hospitalized, and that the Veteran was willing and able to report for a rescheduled VA examination. In May 2011 the Veteran submitted a statement from a physician, written on a prescription pad, stating that the Veteran has had back pain and arthritis pain since an accident in the Navy forty years ago. This statement is not accompanied by any sort of rationale and appears to rely solely on the Veteran's unsupported history.
However, under these circumstances, and because the Veteran has since attempted to submit additional evidence in support of his claim, the Board finds that he should be afforded an additional opportunity to appear for the requested examination.
Nevertheless, the Board cautions the Veteran concerning his own responsibility to cooperate with VA in this matter. The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's responsibilities include reporting for a VA examination if necessary. Moreover, the Board notes that under 38 C.F.R. § 3.655 the Veteran's failure to report for a VA examination may result in denial of his claim. The Veteran should be so advised.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
1. The RO/AMC should obtain updated VA treatment records as well as take any appropriate action to obtain treatment records from any other providers who may have evaluated the disability at issue in this remand, including records from the physician who provided the May 2011 noted reference above. If the Veteran indicates that he has received any treatment or evaluations, the RO/AMC should obtain and associate those records with the claims file.
2. Thereafter, the RO/AMC should schedule the Veteran for an appropriate VA examination in support of his claim of entitlement to service connection for residuals of a spinal injury. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The claims file must be made available to and be reviewed by the examiner prior to the examination. Following a thorough evaluation the examiner should determine the precise nature and extent of any disorder associated with the spine. Furthermore, the examiner is requested to stated whether any such disability is at least as likely as not (e.g., a 50 percent probability or greater) related to the Veteran's active service, including his reported in-service automobile accident. A completely rationale for each opinion offered must be included in the report and an explanation of the principles involved would be of considerable assistance to the Board. Specifically, that rationale should explain the extent to which the opinion is based on medical principles and the extent to which it is based on the history provided by the Veteran.
3. When the requested development has been completed the case should again be reviewed by the RO, to include consideration of any additional evidence submitted. If the benefit sought is not granted the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).